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2006 DIGILAW 333 (KER)

Sundaresan Nair v. Dr. S. Krishnankutty Nair

2006-06-15

K.HEMA

body2006
Judgment :- Defendants are appellants. They challenge in this appeal, an order of remand passed by the District Court. As per the said order, District Court allowed an amendment in favour of plaintiffs by which a prayer for declaration was permitted to be incorporated in the plaint. Defendants—appellants were allowed to file additional written statement, once the amendment is allowed. The appellate court also gave direction to trial court to give opportunity to both sides to adduce evidence. With these directions, the suit was remanded to trial court for fresh disposal in accordance with law. 2. Facts, briefly: The plaintiffs—respondents filed a suit for permanent prohibitory injunction before the Munsiff Court. As per the averments in the plaint, Ext.A-1—partition deed stipulates that the plaint schedule property which includes a temple, always remained as ‘tharavad' property and it is impartible. The respective 'karanavar' of the tharavad has to `hold' the property, enjoy the usufructs, administer and manage the temple which includes lighting of lamps, conducting of festival etc. In the light of the recitals in Ext. A-1, plaintiffs are entitled to manage the administration of temple, it is contended. 3. The plaintiffs also raised a contention that defendants who are close relatives of deceased Balakrishna Pillai are attempting to trespass into the temple premises, with a view to interfere with plaintiffs' right to manage the temple. Defendants are not members of the tharavad. They do not have any interest in the plaint property, though their father was managing the temple and its affairs. Such management and administration was only in the representative capacity, as a representative of the tharavad. 4. After the death of Balakrishna Pillai, first plaintiff became the senior most male member of "tharavad' and he has the right to manage the temple and to hold plaint property. Hence, he assumed office and was managing affairs of the temple with the help of second plaintiff, who is the next male member under him. He had been exercising management of the temple, uninterruptedly, without any interference. Hence, he assumed office and was managing affairs of the temple with the help of second plaintiff, who is the next male member under him. He had been exercising management of the temple, uninterruptedly, without any interference. But, in view of a threat of trespass and anticipated interference by defendants, a suit was filed to restrain defendants by a permanent prohibitory injunction from trespassing into plaint property and from interfering with rights of the plaintiff to hold the plaint property and to the manage affairs of the temple situated in the plaint schedule property and from committing any waste and taking usufructs from the plaint property etc. 5. The defendants denied all the allegations and averments in the plaint. They asserted their right in the property and also for the management of the temple. The defendants contended that plaintiff had no right as alleged, for managing the property Several other contentions were also raised. 6. In the light of the rival contentions, as revealed from the pleadings, and in the nature of the dispute between parties and the arguments advanced in this appeal, first question to be decided for disposal of the appeal is, as to what exactly is the prime issue to be resolved for disposal of the suit. On a reading of the plaint and the written statement, it is abundantly clear that parties were at issue in respect of their respective alleged right over the management of the temple which is situated in the plaint schedule property, its affairs and administration. But, the suit does not rest on a claim of any exclusive title or possession over the plaint property. The plaintiffs only assert the right to manage the temple and to hold the plaint property for such purpose. While plaintiffs asserted such rights based on Ext.A-1, defendants denied the same. 7. However, trial court proceeded to consider whether plaintiffs proved their exclusive possession over the plaint schedule property, though the suit does not relate to any claim based on title or exclusive possession over the plaint property. While plaintiffs asserted such rights based on Ext.A-1, defendants denied the same. 7. However, trial court proceeded to consider whether plaintiffs proved their exclusive possession over the plaint schedule property, though the suit does not relate to any claim based on title or exclusive possession over the plaint property. In the appeal appellate court was of the view that the dispute involved can be determined in the present suit itself, by giving an opportunity to amend the suit by incorporating a prayer for declaration that the plaintiffs are entitled to administer and manage the affairs of the temple in the plaint property and to hold the property for the upkeep and maintenance of the affairs of the temple. The appellate court was of the view that by allowing the amendment sought for, multiplicity of proceedings can be avoided. 8. On a perusal of the pleadings, evidence and documents produced in this case, I find that the main issue to be decided in the suit is whether plaintiffs have exclusive right to administer and manage the affairs of the temple which is situated in the plaint schedule property and whether they have the right to hold the property for the upkeep and maintenance of the affairs of the temple. If the plaintiffs can prove such right, they will be entitled to get a decree for permanent injunction, as prayed for. 9. For the purpose of obtaining a decree as prayed for, it is not necessary to get a declaration of the alleged right over the property. It may not also be necessary for the plaintiffs to establish that they are in actual physical possession of plaint schedule property. Though the actual possession of the property by any one of the parties may be a circumstance which also the court may take into account while resolving the dispute between the parties, that is not the crucial issue. What is to be established by plaintiffs to get the relief is that by virtue of Ext.A-1, they have the right to manage temple and administer the same and that they have the right to hold the plaint schedule property for such purpose and also for taking usufructs in connection with the affairs of the temple. 10. For deciding the above issue, materials are already available on record. The parties also went to trial, sufficiently being aware of the point of controversy between them. 10. For deciding the above issue, materials are already available on record. The parties also went to trial, sufficiently being aware of the point of controversy between them. They knew from the pleadings, as to what plaintiffs were asserting and what defendants were denying. They let in evidence also, based on the pleadings and being fully aware of the actual issue which arose between them. 11. In such circumstances, appellate ought to have, on the basis of the materials placed on record, considered and decided whether plaintiffs have any right for administration and management of the affairs of the temple and whether they have the right to hold the property and take usufructs for such purpose, as alleged in the plaint. While proceeding to decide this issue, if found necessary, appellate court may also reset the issue or issues and finally determine the suit, even if the trial court wrongly proceeded upon some other ground. The materials which are available before court would be more than sufficient to determine the suit and pronounce the judgment. 12. Thus, this is a clear case where lower appellate court ought to have proceeded under Order 41, Rule 24 of CPC. Rule 24 of Order 41 reads as follows: "Order 41, Rule 24—Where evidence on record sufficient, Appellate Court may determine case finally.—Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resetting the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds." 13. A reading of Order 41, Rule 24 of CPC reveals that where the evidence upon record is sufficient to enable the appellate court to pronounce judgment, appellate court may, finally determine the suit on the basis of the available materials. If the appellate court finds that resetting of the issues would be necessary, it may do so, while determining the suit finally. This maybe done, notwithstanding that the judgment of the trial court has proceeded wholly upon some ground other than that on which appellate court proceeds. 14. If the appellate court finds that resetting of the issues would be necessary, it may do so, while determining the suit finally. This maybe done, notwithstanding that the judgment of the trial court has proceeded wholly upon some ground other than that on which appellate court proceeds. 14. On a perusal of the records, I find that this is a fit case where appellate court itself ought to have decided the issue which was to be raised for resolving the actual controversy between the parties and determine the suit finally, by resetting the issue. The lower appellate court ought to have determined the suit and pronounced the judgment based on the available evidence and materials as stated in Order 41, Rule 24 of CPC. When a provision is laid down in CPC, which enables appellate court to determine the suit finally on the basis of available evidence and materials on record, which will be sufficient. to determine the suit and pronounce the judgment, the appellate court is expected to exercise such powers as provided under Order 41, Rule 24 of CPC, unless the court find sufficient reasons to adopt or go for a different course. 15. The provision contained in Order 41; Rule 24 of CPC is laid down mainly with a view to reach a finality to the proceedings, without any unnecessary delay. It is intended to ensure speedy justice so that the winning parties may enjoy fruits of litigation at the earliest opportunity. It also seems me that legislature intended that the result of litigation must be known even to the defeated party without delay. Instead of being driven through the long winding hierarchical escalators, the parties must be aided by the court to get the verdict before he runs too long. The object of the statute being so, the court shall not hesitate nor be sluggish in proceeding under Order 41, Rule 24 of CPC. Any failure to act as per the provision contained in Order 41, Rule 24 of CPC will defeat the very object of the provision. 16. The appellate courts are therefore, bound to follow the procedure contained in Order 41, Rule 24 of CPC, when the requirements under the said provision are satisfied, to ensure that the object of legislature is achieved, in the interest of justice. 16. The appellate courts are therefore, bound to follow the procedure contained in Order 41, Rule 24 of CPC, when the requirements under the said provision are satisfied, to ensure that the object of legislature is achieved, in the interest of justice. But, the court below committed an error in not following the procedure under Order 41, Rule 24 of CPC and also in remanding the suit under Section 41, Rule 23 on the ground that it is done in the interest of justice. On facts of this case, even without allowing an amendment as sought for, incorporating a prayer for declaration, permanent prohibitory injunction can be granted, if plaintiffs establish their disputed right. 17. It is also relevant to note in this context that a remand order under Order 41, Rule 23 CPC can be made only if a remand becomes necessary in the interest of justice. Order 41, Rule 23 CPC reads as follows: "Order 41, Rule 23—Remand of case by Appellate Court.— Where the Court from whose decree an appeal is preferred has disposed of the suit upon a preliminary point and the decree is reversed in appeal, or where the Appellate Court in reversing or setting aside the decree under appeal considers it necessary in the interests of justice to remand the case, the Appellate Court may by order remand the case, and may further direct what issue or issues shall be tried in the case so remanded, and shall send a copy of its Judgment and Order to the Court from whose decree the appeal is preferred, with directions to readmit the suit under its original number in the register of civil suits and proceed to determine the suit and the evidence (if any) recorded during the original trial, shall, subject to all just exceptions be evidence during the trial after remand." 18. It is clear from Order 41, Rule 23 CPC that a remand order can be passed if the court finds it necessary in the interest of justice to do so. ‘Interest of justice' alone must be the propelling force or the guiding factor for the court to determine whether a case has to be remanded or not. As far as possible the court shall avoid a remand, unless it is satisfied that a remand is essential to protect interest of justice. ‘Interest of justice' alone must be the propelling force or the guiding factor for the court to determine whether a case has to be remanded or not. As far as possible the court shall avoid a remand, unless it is satisfied that a remand is essential to protect interest of justice. On the facts of this case, interest of justice demands that court shall bring a finality to the proceedings, avoiding all possible delay and also an unnecessary remand. But a remand is allowed only for incorporating a prayer for a declaration, which was not quite necessary to determine the suit. Hence, it cannot be said that the remand was necessary in the interest of justice. The impugned order of remand is therefore set aside. The order allowing amendment is also set aside. The matter is remanded to the lower appellate court for fresh consideration and disposal following the procedure laid down in Order 41, Rule 24 CPC. Appeal is allowed.